Cape Town – A move by Cabinet to research the judgments of the highest court in the land has raised alarm bells, with renewed fears that judicial independence may once again be under threat.

“Given President Jacob Zuma’s [way] of putting the courts in their place, one is inclined to be suspicious about the motives,” said Professor Willem Landman, the CEO of the Ethics Institute in South Africa.

He described the proposed review as “inappropriate”.

Cabinet spokesperson Jimmy Manyi said in Pretoria on Thursday that the assessment of Constitutional Court judgments would form part of a broader inquiry into transformation of the judiciary and the role of judges in a developmental state.

The government wants to establish how the Constitutional Court’s judgments have affected the lives of ordinary South Africans and influenced socio-economic transformation and judicial reform.

This would be done by appointing a research institute to assess the Constitutional Court’s decisions. Further details will be made public next week.
Monitoring of court decisions

However, Landman noted that the court’s findings do not in themselves have any effect on people’s lives, except if the executive chooses to give effect to them. “Then, and only then, can impact be evaluated,” he said.

Manyi added that the government wants an appropriate framework to be established to ensure regular monitoring of how court decisions are being implemented by all government departments. It is also necessary to ensure greater access to justice.

The Cabinet statement comes in the wake of Zuma’s recent remarks to Parliament that the judiciary must respect the separation of powers and should not make policy.

Senior ANC leaders, including secretary general Gwede Mantashe and party chief whip Mathole Motshekga, are among those who have criticised what they believe are judgments by an activist court that have strayed into the policy domain of the executive.

Recent appointments to the court also point to a more executive-minded judiciary.

DA MP Dene Smuts described cabinet’s move as “one of the strangest proposals to date”.

“It will inevitably be seen as a sinister attempt to bend the Bench to the executive and the ruling party’s will, especially given the recent spate of hostile comment from such persons as … Gwede Mantashe and the deputy minister of Correctional Services, Ngoako Ramatlhodi, and the fact that it is common knowledge that certain judgments are unpopular with the ANC,” she said.
What is behind it

Professor Pierre de Vos, a constitutional law expert at the University of Cape Town, said if the motive is based on the belief that the court is interfering with the executive and legislative authority, then Cabinet’s decision is absurd.

“Everything depends on what is behind it. Thus far the judiciary has diligently applied the Constitution, unlike the executive and the legislative authorities.”

Former Constitutional Court judge Johann Kriegler, who is also chairperson of the organisation Freedom Under Law, said it is striking that “assisting and protecting the independence, impartiality, accessibility and efficiency of the courts apparently does not need any attention”.